IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

William Oney, et al., :

 

Plaintiffs, : 

v. : Case No. 2:11-cv-00350 

 

Densile Beji, et al., : JUDGE EDMUND A. SARGUS, JR.

 Magistrate Judge Kemp

Defendant. : 

 OPINION AND ORDER

Plaintiffs William Oney and Jean Oney filed this personal

injury action against Defendants seeking compensation for

injuries allegedly arising from a motor vehicle accident. This

Opinion and Order will address two of the motions that are

pending before the Court. 

First, Plaintiffs William and Jean Oney filed a motion to

compel joinder of the United States Department of Health and

Human Services (“DHHS”) as a necessary party pursuant to Rule 19

of the Federal Rules of Civil Procedure. In the alternative,

Plaintiffs have moved for leave to file an Amended Complaint

joining DHHS as a defendant. This motion has been fully briefed. 

For the reasons that follow, Plaintiffs’ motion will be denied. 

Second, Defendant Densile Beji filed a motion to dismiss

Plaintiffs’ action pursuant to Rule 12(b)(5) for failure to

complete service within one hundred twenty (120) days after the

complaint was filed. This motion has also been fully briefed. 

For the reasons that follow, Defendant Beji’s motion will be

denied and the Court will extend time for service. 

I. Motion for Joinder

Plaintiffs seek to join DHHS as a necessary party under Rule

19(a)(1). The existing parties to this action are Plaintiff

Case: 2:11-cv-00350-EAS-TPK Doc #: 24 Filed: 10/13/11 Page: 1 of 5 PAGEID #: <pageID>
-2-

William Oney, the driver of the first vehicle involved in the

accident, Plaintiff Jean Oney, his wife, and Defendants Densile

Beji, Larry Davis, and TNG Transportation, Inc., who are alleged

to be the driver and owners of the second vehicle involved in the

accident, respectively. The Oneys assert that Medicare has made

conditional payments for Mr. Oney’s benefit and that they and

Defendants are obligated to reimburse DHHS for those conditional

payments. The Oneys also dispute the amount of conditional

payments that were made. Consequently, they argue that if DHHS

is not joined, the existing parties to this suit may be subject

to a “substantial risk of incurring double, multiple, or

otherwise inconsistent obligations because of the interest.” 

Fed. R. Civ. P. 19(a)(1)(B)(ii). 

Federal Rule of Civil Procedure 19(a)(1) specifies persons

who are required to be joined if feasible. It begins with the

requirement that the person be “subject to service of process.” 

Fed. R. Civ. P. 19(a)(1). Rule 19 does not “extend or limit the

jurisdiction of the United States district courts . . . .” Fed.

R. Civ. P. 82. Accordingly, Rule 19 cannot authorize joinder of

a party over whom this Court lacks jurisdiction. See, e.g.,

Dawavendewa v. Salt River Project Agr. Imp. And Power Dist., 276

F.3d 1150 (9th Cir. 2002) (holding that party could not be joined

pursuant to Rule 19 because the party enjoys sovereign immunity

from suit). Therefore, the initial question before the Court is

whether DHHS enjoys sovereign immunity from the claim which the

Oneys intend to assert. If so, the Court lacks jurisdiction to

order its joinder. 

The United States, as sovereign, “is immune from suit, save

as it consents to be sued . . . .” United States v. Sherwood,

312 U.S. 584, 586 (1941); see also United States v. Dalm, 494

U.S. 596, 607 (1990) (quotations and citations omitted); Ellison

v. United States, 531 F.3d 359, 361 (6th Cir. 2008). This

Case: 2:11-cv-00350-EAS-TPK Doc #: 24 Filed: 10/13/11 Page: 2 of 5 PAGEID #: <pageID>
-3-

immunity extends to DHHS, an agency of the United States. See,

e.g., Whittle v. United States, 7 F.3d 1259, 1262 (6th Cir. 1993)

(citations omitted). Waivers of sovereign immunity must be

unequivocally expressed in statutory text and construed strictly

in the government's favor. Lane v. Pena, 518 U.S. 187, 192

(1996) (citations omitted). 

Here, the Oneys have not pointed to any waiver of DHHS’s

sovereign immunity, nor is the Court aware of any that would

apply in this case. Indeed, the Social Security Act “channels

most, if not all, Medicare claims through [the] special review

system [described in the Act],” and precludes suits that do not

follow the procedures set forth therein. Shalala v. Illinois

Council on Long Term Care, Inc., 529 U.S. 1, 8 (2000) (citing 42

U.S.C. §405(h)). As a result, the Court cannot order DHHS’s

joinder pursuant to Rule 19, nor can the Oneys sue DHHS directly

in this action. 

For these reasons, the Oneys’ motion for joinder of DHHS is

denied. Further, because amending the complaint to add DHHS as a

defendant would be futile since DHHS has not waived immunity,

their alternative request for leave to amend the complaint is

also denied. 

II. Motion to Dismiss

Defendant Densile Beji, who is alleged to be the driver of

the vehicle that caused the accident described in the complaint,

filed a motion to dismiss for insufficient service of process. 

The Oneys filed the complaint in this action in state court on

March 18, 2011, and Defendants subsequently removed this case to

Federal Court. The parties are in agreement that the Oneys have

not served Densile Beji and that he has not waived service. They

also appear to agree that the Oneys do not currently have a valid

address for him. 

Case: 2:11-cv-00350-EAS-TPK Doc #: 24 Filed: 10/13/11 Page: 3 of 5 PAGEID #: <pageID>
-4-

Rule 4(m) provides as follows: 

If a defendant is not served within 120 days after the

complaint is filed, the court – on motion or on its own

after notice to the plaintiff – must dismiss the action

without prejudice against that defendant or order that

service be made within a specified time. But if the

plaintiff shows good cause for the failure, the court

must extend the time for service for an appropriate

period.

Fed. R. Civ. P. 4(m). 

The Oneys have provided evidence of their efforts to obtain

a waiver of service from Defendant Beji. In addition, they have

asserted that they expect that Defendants’ responses to

outstanding discovery requests will include a valid address for

Defendant Beji so that they can complete service. Accordingly,

this Court will extend the time for Plaintiffs to complete

service on Defendant Beji. 

III. Conclusion and Order

For the reasons set forth above, the Court denies the motion

to join DHHS (#11). It is further ordered that the time for

Plaintiffs to complete service on Defendant Beji is extended to

November 14, 2011. Given that extension, his motion to dismiss

(#15) is moot. 

Any party may, within fourteen days after this Order is

filed, file and serve on the opposing party a motion for

reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.

I., F., 5. The motion must specifically designate the order or

part in question and the basis for any objection. Responses to

objections are due fourteen days after objections are filed and

replies by the objecting party are due seven days thereafter. 

The District Judge, upon consideration of the motion, shall set

aside any part of this Order found to be clearly erroneous or

contrary to law.

Case: 2:11-cv-00350-EAS-TPK Doc #: 24 Filed: 10/13/11 Page: 4 of 5 PAGEID #: <pageID>
-5-

This order is in full force and effect, notwithstanding the

filing of any objections, unless stayed by the Magistrate Judge

or District Judge. S.D. Ohio L.R. 72.4. 

/s/ Terence P. Kemp 

United States Magistrate Judge

Case: 2:11-cv-00350-EAS-TPK Doc #: 24 Filed: 10/13/11 Page: 5 of 5 PAGEID #: <pageID>